The Crown misled the Court of Appeal by failing to disclose a document to John Banks ahead of an appeal hearing, according to a new judgment.
But the three senior judges this was an “error of judgment rather than misconduct”.
The case against Mr Banks has been thrown out and he will not face a second trial for allegedly filing a false electoral return.
The Court of Appeal has sensationally reversed its previous decision to order a retrial following the late disclosure of a document, which Mr Banks’ lawyer David Jones QC said “contradicts all evidence given at trial” by the Dotcom witnesses and made the prosecution “untenable”.
In a judgment just released by the Court of Appeal, Justices Ellen France, Forrest Miller and John Wild ruled that Mr Banks should not stand trial again and he was acquitted.
The senior judges disagreed with the Crown’s argument that the ‘Butler memorandum’ did not need to be disclosed.
“We hold rather that the Crown could not both withhold the memorandum and resist the appeal in the manner that it did. The effect was to mislead the Court.
“We are satisfied that there has been a serious error of process. It is, we accept, attributable to an error of judgment rather than misconduct.” . .
That error of judgement does not reflect well on the court.
The trial largely hinged on the credibility of who was right about a contentious lunch at the Dotcom mansion. Banks was convicted but his wife Amanda later unearthed new witnesses who corroborated their version of events, so the Court of Appeal quashed the conviction and ordered a retrial. . . .
Mrs Banks, understandably, did not take kindly to the judge in the earlier case accepting Kim Dot Com’s word rather than hers:
. . The Court of Appeal’s decision notes Mrs Banks “was stung by the Judge’s opinion of her reliability”.
“She became quite obsessed as she puts it, with identifying the two Americans. . .
That obsession led to the evidence which secured her husband’s acquittal.